>lo. 82-210 

IN THE SUPPSME COURT OF THE STATE OF MONTANA 

198 3 

E . ROY TAIJI',!AGE, 

Plaintiff and Appellant, 

HERBERT 0. GRUSS and INGEBURG W. 

GIIU S S , 

Defendants and Respondents. 

Appeal from: District Court of the Twelfth Judicial District, 

In and for the County of Blaine, The Honorable 

Leroy L. WcKinnon, Judge presiding. 

Counsel of Record: 

For Appellant: 

Sias & Ranstrom; Donald A. Ranstrom, Chinook, 

Montana 

For Respondents : 

Spangelo Law Firm; James W. Spanqelo, Havre, 

Montana 

Submitted on Briefs: Gctober 14, 1982 

Decided: February 10, 1983 

"- k:; $1 14 - .&J 

Filed: 
Mr. ~ustice Fred J. Weber delivered the Opinion of the Court. 

Appellant brought an action on a promissory note in the 

~istrict Court of the Twelfth Judicial District, Blaine 

County. Appellant prevailed in the action on the note, but 

was not awarded the full amount of the attorney fees requested. 

We remand to the District Court for the entry of appropriate 

findings on the question of attorney fees. 

E. Roy Talmage brought suit on November 19, 1979, 

against Herbert Gruss and Ingeburg Gruss, husband and wife. 

The action was based upon a $1,500 promissory note. The 

Grusses were makers of the note. One of the terms of the 

note was that the makers would pay reasonable attorney fees 

if the note was not paid at maturity. 

The Grusses attempted to defend without counsel in the 

early stages of the action. Delay of the discovery process 

resulted, and Talmage moved for sanctions under Rule 37, 

M. R. Civ. P. The court imposed Rule 37 sanctions and 

ordered the Grusses to pay $537.50 to Talmage's counsel for 

attorney fees incurred as a result of the Gruss' frustration 

of discovery. 

A non-jury trial was had on October 1 and 2, 1981. The 

judge found that the Grusses owed Talmage $1,500 plus interest 

and attorney fees. Talmage's counsel claimed attorney fees 

in the amount of $3,637.50. Counsel for the Grusses opposed 

an award of that amount. On April 9, 1982, the judge issued 

his order on attorney fees. The judge found that the Grusses 

were in poor financial condition, that their health was 

quite bad, and that because they were elderly neither their 

health nor their finances were likely to improve. The judge 

also found that counsel for the Grusses had expended considerable 
time and effort for a nominal fee. The judge ordered that 

Talmage's fee award be limited to the $537.50 already awarded, 

plus costs. On May 6, 1982 the court denied Talmage's 

motion to amend the attorney fees order. This appeal followed. 

The amount fixed as attorney fees is largely discretionary 

with the District Court, and we will not disturb its judgment 

in the absence of an abuse of that discretion. Carkeek v. 

Ayer (1980) Mont. , 613 P.2d 1013, 1015, 37 St.Rep. 

"In determining whether the trial court abused its 

discretion, the question is not whether the reviewing court agrees with the trial court, but, rather, 

did the trial court in the exercise of its discretion 

act arbitrarily without the employment of conscientious 

judgment or exceed the bounds of reason, in view 

of all the circumstances, ignoring recognized 

principles resulting in substantial injustice." 

Porter v. Porter (1970), 155 Mont. 451, 457, 473 

P.2d 538, 541. 

This Court has set forth the following guidelines to be used 

in determining the amount to be awarded as reasonable attorney 

fees: 

"The circumstances to be considered in determining 

the compensation to be recovered are the amount 

and character of the services rendered, the labor, 

time and trouble involved, the character and 

importance of the litigation in which the services 

were rendered, the amount of money or the value of 

property to be affected, the professional skill 

and experience called for, the character and 

standing in their profession of the attorneys . . . The result secured by the services of the attorneys 

may be considered as an important element in 

determining their value." First Security Bank of 

Bozeman v. Tholkes (1976), 169 Mont. 422,429-30, 

547 P.2d 1328, 1332. 

These guidelines are not necessarily exclusive. A 

trial court properly may consider other factors in reaching 

a decision on reasonable attorney fees. However, the findings 

in the present case only revealed that the District Court 

considered the age, health and financial condition of the 

Grusses and that counsel for the Grusses had expended consid- 
erable effort for a nominal fee. The findings do not show a 

consideration of any of the other factors listed above in 

First Security Bank -- of Bozeman. In an appropriate case, we 

have implied findings in support of the trial court's conclusions where those findings are not inconsistent with the 

express findings made. In Marta v. Smith (1982), Mont. I 

650 P. 2d 1387, 1389, 39 St.Rep. 1839, 1842, we held that 

findings not specifically made but necessary to the judgment 

are deemed to have been supplied if supported by the evidence. 

Berry v. Romain (1981) , Mont. , 632 P.2d 1127, 1132, 

38 St.Rep. 1434, 1439-40. Unfortunately we do not have 

a transcript of the proceedings and therefore are unable to 

determine if there is evidence to support implied findings. 

In view of the great amount of attorney's effort already 

required in a case involving a $1,500.00 principal judgment 

plus interest, we are reluctant to send the matter back for 

further proceedings. However, in the absence of findings which 

allow us to review the basis for the award of attorney fees 

and in the absence of a record from which findings may be 

implied, we are required to return the case for further consideration by the judge. 

We vacate the order determining attorney fees and 

return the same to the District Court for the preparation of 

appropriate findings with regard to the requested attorney 

fees, containing a review of the factors described in this 

case and such order as the District Court 

We concur: